Obama used DHS memo that was never filed in Federal Register

NEW YORK – U.S. District Judge Andrew Hanen’s temporary restraining order halting the Department of Homeland Security from implementing “amnesty” may be hard to challenge because the decision was based soundly on administrative law, noting the agency violated federal procedure by failing to file the order in the Federal Register, noted talk-radio host Rush Limbaugh on his nationally syndicated show Wednesday.

Limbaugh cited a Reuters’ article published Wednesday that echoed the startling fact that WND was first to report. Contrary to widely held belief, Obama did not implement his plan to delay the deportation of more than 4 million illegal aliens through executive orders. Instead, he relied on a memorandum signed Nov. 20, 2014, by DHS Secretary Jeh Johnson, which DHS failed to file in the Federal Register as required by federal administrative law procedures.

“In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on,” Reuters reported. “Instead, he faulted Obama for not giving public notice of his plans.”

Limbaugh noted analysts “are now saying this judge is craftier and smarter than people originally thought because people began to analyze it really before they read all 128 pages of opinion.”

“And this is – it appears to be obscure, what do you mean, he didn’t publish this? He didn’t give public notice. Well, they got Al Capone on tax evasion, not murder.”

Obama’s failure to sign an executive order on “amnesty” was a fact first reported by WND in an article by WND Senior Reporter Jerome Corsi published Dec. 3, 2014, titled “Amnesty Shocker! The Secret Behind Obama’s ‘Order.’”

“As I indicated, it would appear that there is not an Executive Order stemming from the President’s remarks on November 20 on immigration,” Hartley wrote.

Hartley said that neither of the executive orders Obama signed in Las Vegas the day after his address to the nation on immigration, delivered from the White House Nov. 20, fulfilled his announced plan to defer deportations and grant work permits to up to 5 million illegal aliens.

“The only two documents that I have located are two Presidential Memoranda, which are available from the White House site,” Hartley’s email continued. “They can also be found in the November 26, 2014 issue of the Federal Register.”

On Nov. 21, 2014, Obama flew to Las Vegas to give a speech at Del Sol High School, where the White House had promoted the idea he would sign executive orders implementing the amnesty announced the evening before.

After a close examination of the public record, however, WND reported that while Obama signed two executive orders in Las Vegas, neither had anything to do with revisions in the Deferred Action for Childhood Arrivals program, commonly known as DACA.

The first of the presidential actions, “Creating Welcoming Communities Fully Integrating Immigrants and Refugees,” filed in the Federal Register Nov. 26, created a White House Task Force on New Americans to “engage with community, business, and faith leaders, as well as State and local elected officials.” It was designed to “help determine additional steps the Federal Government can take to ensure its programs and policies are serving diverse communities that include new Americans.”

The second of the presidential actions, “Modernizing and Streamlining the U.S. Immigration Visa System for the 21st Century,” also filed in the Federal Register on Nov. 26, “empowered the secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education” to make a series of recommendations “to reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system” of issuing immigrant and non-immigrant visas.”

The only Obama administration document relevant to altering DACA to accommodate the legislative changes announced in Obama’s address to the nation Nov. 20 is a DHS memorandum signed by DHS Secretary Jeh Johnson titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,” dated Nov. 20, 2014.

DHS failed to file in the Federal Register

What became clear was that Johnson was the vehicle chosen by the Obama administration to extend temporary residency status and work authorization to millions of parents of illegal-immigrant children currently in the country.

The “Guide to the Federal Rulemaking Process” published by the Office of the Federal Register specifies the following:

Agencies get their authority to issue regulations from laws (statutes) enacted by Congress. In some cases, the President may delegate existing Presidential authority to an agency. Typically, when Congress passes a law to create an agency, it grants that agency general authority to regulate certain activities within our society. Congress may also pass a law that more specifically directs an agency to solve a particular problem or accomplish a certain goal.

An agency must not take action that goes beyond its statutory authority or violates the Constitution. Agencies must follow an open public process when they issue regulations, according to the Administrative Procedure Act (APA). This includes publishing a statement of rulemaking authority in the Federal Register for all proposed and final rules.

Yet DHS apparently neglected to file the implementing memorandum in the Federal Register.

A fatal flaw?

Johnson’s implementing memo is technically the announcement of a decision to exercise prosecutorial discretion, not specified as a change in rules.

“Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time,” Johnson’s memo noted.

The DHS memo continued:

An important question remains whether the Johnson memo implementing these rule changes are subject to public comment provisions under the typical requirements for an administrative agency to issue new regulations. This is a legal question given the impact of the Johnson memo is to stop effectively deportations of illegal immigrants that have been in the United States prior to Jan. 1, 2010, and are parents of children who are U.S. citizens or legal U.S. residents.

In the next two sentences Johnson’s memo attempted to make the deferred prosecution decision announced for the DACA program equivalent to an executive action taken by two recent Republican presidents.

“A form of administrative relief similar to deferred action, known then as ‘indefinite voluntary departure,’ was originally authorized by the Reagan and Bush administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986,” the memo said. “Known as the ‘Family Fairness’ program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.”

The memo then attempted to further distinguish deferred action from rulemaking by noting the temporary aspects of the prosecutorial discretion involved:

Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card.

Finally, the memo acknowledged that the actions taken with respect to the DACA program are not specifically authorized in any legislation passed by Congress and signed into law by the president.

Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication.

The end result was the Obama administration set up Johnson’s memo as the focus of a narrow judicial ruling, turning first on the question of whether or not DHS followed legally required procedures in issuing the memorandum.

Will the Supreme Court throw out the DHS memo?

Conceivably, appellate courts, including the U.S. Supreme Court, could rule in this instance without ever needing to decide whether or not Obama’s “executive actions” on immigration were unconstitutional.

In his analysis of Hanen’s decision, Limbaugh centered on a question first reported by WND: Was Johnson’s attempt to change the law outside the normal congressional rulemaking procedures a fatal flaw?